Judicial Conduct Commissioner (Miscellaneous) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:43): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill makes miscellaneous amendments to the Judicial Conduct Commissioner Act 2015. The Act was passed by Parliament on 29 October 2015 and received Royal Assent as No 34 of 2015 on 5 November 2015. Since that date, the Governor has appointed the Independent Commissioner Against Corruption, the Honourable Bruce Lander QC, as the first Judicial Conduct Commissioner (the Commissioner) with the approval of the Parliamentary Statutory Officers Committee.

The amendments contained in this Bill were requested by the Commissioner and the Crown Solicitor, and operate to clarify some aspects of the Act and improve the efficiency of the judicial complaints process.

The Bill allows the Commissioner to investigate if further information or new evidence enlivens a complaint that would otherwise have been dismissed, and also allows the Commissioner to summarily dismiss complaints that could be dismissed under section 17, but without the need to conduct a preliminary examination or to give notice of the complaint to the judicial officer concerned or to the jurisdictional head. This will assist to reduce the administrative burden on the office of the Commissioner.

The Bill provides that the identity of the complainant need not be provided to the judicial officer concerned or to the relevant jurisdictional head unless the complainant consents to the disclosure or the Commissioner is of the opinion that the disclosure of the complainant's identity is necessary in order to ensure that the judicial officer is able to properly respond to the complaint or to ensure that the relevant jurisdictional head can properly deal with the complaint. This is essential to encourage complaints to be made to the Commissioner, especially coupled with an amendment to make it clear that any acts of victimisation from a judicial officer towards a complainant can itself be conduct that is the subject of a complaint. It is important to the Commissioner and to the Government that lawyers not be dissuaded from making complaints due to fears of retaliation when they next appear before that judicial officer.

The definition of 'relevant jurisdictional head' where the person the subject of the complaint is themselves a jurisdictional head has been amended to refer to the Chief Justice of the Supreme Court, meaning that complaints about a jurisdictional head are referred to the Chief Justice.

The Bill also makes several minor points of clarification, including requiring a copy of the report of the Judicial Conduct Panel be provided to the Commissioner, providing that where the Commissioner is also the Independent Commissioner Against Corruption, a person employed under section 12 of the Independent Commissioner Against Corruption Act 2012 and directed to perform duties under the Judicial Conduct Commissioner Act 2015 or a person seconded to assist the Commissioner be included as a 'member of the Commissioner's staff' and making it clear that that the Commissioner has the explicit power to consider conduct that occurred prior to the commencement of the Judicial Conduct Commissioner Act 2015.

Finally, the Bill makes an amendment to address the circularity of the current section 33, which provided that a person must not, except as authorised, publish information relating to a complaint if the publication was prohibited. The section has been amended to clarify that information cannot be published unless authorised by the Commissioner.

The provisions in this Bill will assist the Commissioner in effectively undertaking his duties, and will clarify the operation of the Judicial Conduct Commissioner Act 2015.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Judicial Conduct Commissioner Act 2015

4—Amendment of section 4—Interpretation

This clause makes a minor change to the definition of relevant jurisdictional head to make it clear that, where a complaint relates to a jurisdictional head, the Chief Justice of the Supreme Court is the only relevant jurisdictional head for the purposes of the complaint. The clause also clarifies that acts of victimisation by a judicial officer may be the subject of a complaint under the Act.

5—Amendment of section 5—Application of Act

This clause clarifies that the principal Act can apply to conduct occurring before its commencement.

6—Amendment of section 10—Staff

This clause ensures that section 10 properly reflects the position in relation to staff under the Independent Commissioner Against Corruption Act 2012 by referring to staff of the Independent Commissioner Against Corruption (and not just staff of the OPI).

7—Amendment of section 12—Making of complaints

This clause allows the Commissioner to determine not to give any notices under subsection (3) in relation to a complaint until the Commissioner has determined whether the complaint is one that must be dismissed under section 17(1).

8—Amendment of section 13—Preliminary examination of complaints

This clause allows the Commissioner to dismiss a complaint before conducting a preliminary examination if the Commissioner determines that the complaint is one that must be dismissed under section 17(1). In addition, if the Commissioner exercises this power to dismiss a complaint, the Commissioner is not required to give any notification in relation to the complaint to the judicial officer who is the subject of the complaint or to the relevant jurisdictional head.

9—Amendment of section 16—Discretionary dismissal of complaint

This clause amends section 16 to ensure consistency of wording and to allow for discretionary dismissal of a complaint where the Commissioner has previously considered the subject matter of the complaint or the Commissioner has determined that the subject matter of the complaint could not, if substantiated, warrant the taking of any action. Currently these are grounds for mandatory dismissal under section 17(1)(g).

10—Amendment of section 17—Mandatory dismissal of complaint

This clause deletes section 17(1)(g) (consequentially to the amendments to section 16) and provides that, if the Commissioner dismisses a complaint under this section, the Commissioner is not required to give any notification in relation to the complaint to the judicial officer who is the subject of the complaint or to the relevant jurisdictional head.

11—Amendment of section 18—Referral of complaint to relevant jurisdictional head

This is consequential to clauses 8 and 9.

12—Amendment of section 25—Report by panel

This amendment requires the report of a judicial conduct panel to be provided to the Commissioner.

13—Amendment of section 27—Commissioner's annual report

This is consequential to clauses 8 and 9.

14—Amendment of section 30—Immunity from liability

This amendment ensures that the immunity from liability under section 30 extends to persons exercising, or purportedly exercising, powers or functions under the Act in accordance with a staffing arrangement established under section 10.

15—Amendment of section 32—Confidentiality, disclosure of information and publication of reports

This amendment requires that a notification required to be given by the Commissioner under the Act to a judicial officer or jurisdictional head must not disclose the identity of any complainant except in certain circumstances.

16—Amendment of section 33—Publication of information and evidence

Currently section 33 allows the Commissioner to prohibit the publishing of information or evidence relating to a complaint but then allows publication of material the subject of a prohibition in accordance with a specific authorisation by the Commissioner or a court. Under the proposed amendment, publication would only ever be allowed in accordance with a specific authorisation by the Commissioner or a court (so there would be no need for any initial prohibition by the Commissioner).

Debate adjourned on motion of Hon. T.J. Stephens.